Com. v. Robertson

• Decision Date: 05 September 1894
• Parties: COMMONWEALTH v. ROBERTSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 90

38 N.E. 25

COMMONWEALTH v. ROBERTSON.

Supreme Judicial Court of Massachusetts.

September 5, 1894

COUNSEL

H.M Knowlton, Atty. Gen., and G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

E.L Barney and L. Le B. Holmes, for defendant.

OPINION

KNOWLTON J.

The defendant contends that this bill of exceptions is not properly before the court, and that, therefore, it cannot now be considered. St. 1892, c. 127, is as follows: "The supreme judicial court, sitting as a full court in any county or for the commonwealth, shall have jurisdiction of all questions of law and of all cases and matters at law or in equity, civil or criminal, arising in any other county than that in or for which it is sitting, and which might properly come before and be heard and determined by the full court sitting for such other county; and upon an application of one or more of the parties, a majority of the justices of said court shall in their discretion have power to order any such questions of law, or case, or matter, to be entered and heard by the full court sitting in any county or at Boston for the commonwealth." Before the enactment of this statute questions of law arising in other counties, where the full court is accustomed to sit, might sometimes be heard before that court sitting in Suffolk. Under Pub. St c. 153, § 16 such a hearing may be had by consent of all parties filed in the case, or by order of the judge before whom the trial was had, if he "deems the exception or appeal frivolous or intended for delay merely, or that the interests of the parties or of the public require a more speedy determination thereof than can be reached in the terms established for the county in which the trial is had," etc. Under the statute of 1891 (chapter 379), and under the amendatory statute of 1894 (chapter 204), exceptions arising on the trial of an indictment for a capital crime may be "entered and determined either at the law sitting of the supreme judicial court held for the county in which they arise, or, upon the order of the justices before whom the trial is had, at the law sitting of the supreme judicial court for the commonwealth." The defendant's counsel argue that this last provision is exclusive, and that St. 1892, c. 127, is not applicable to exceptions arising in a capital case. But we do not so understand the law. The last-mentioned statute was intended to give the full court, upon application of a party, full power to determine the place of hearing questions of law in any case, and it does not take away the jurisdiction of the justices before whom the trial is had to make such prior orders as are authorized by Pub. St c. 153, § 16, or by St. 1891, c. 379.

It is urged in behalf of the defendant that the jurisdiction under St. 1892, c. 127, does not arise until after the questions of law have been formally entered in the full court for the county where the trial was had, or in the full court for the commonwealth, if the justices before whom the trial was had have made an order for an entry there. But the language is broad enough to give jurisdiction as soon as questions have been put in form for hearing, so that nothing remains to be done but to make the formal entry of them in the full court, which the law directs the clerk to make "as soon as may be." Pub. St. c. 153, § 15. There seems to be no good reason why they should first be entered in the county where the trial is had, and then transferred to Suffolk, or some other county. We think the jurisdiction of the court attaches to make an order in regard to the entry as soon as the questions are ripe for entry, and that it is immaterial whether the application to the full court is made before or after the entry which the law requires when there is no application.

The form of the order in the present case is sufficient. The words, "assigned and heard by the full court sitting in Boston," are equivalent to "entered and heard by the full court" sitting in Boston.

The defendant filed a motion to quash the indictment, which was overruled. Of the causes on which the motion was founded, the fourth was waived at the argument, and the others are as follows: (1) Because the indictment contains no sufficient allegation or description how the defendant held the knife (2) because the mortal wound is not sufficiently described; (3) because there is no allegation or...